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No. 14-1209
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
IN THE
Supreme Court of the United States ————
JOHN STURGEON, Petitioner,
v.
BERT FROST, IN HIS OFFICIAL CAPACITY AS ALASKA REGIONAL DIRECTOR OF THE
NATIONAL PARK SERVICE, ET AL., Respondents.
———— On Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
———— BRIEF FOR UNITED STATES SENATORS
SULLIVAN AND MURKOWSKI AND REPRESENTATIVE YOUNG AS
AMICUS CURIAE IN SUPPORT OF PETITIONER JOHN STURGEON
————
JONATHAN W. KATCHEN Counsel of Record
KYLE W. PARKER CROWELL & MORING LLP 1029 W. Third Avenue, Suite 550 Anchorage, Alaska 99501 (907) 865-2600 [email protected]
Counsel for United States Senators Sullivan and Murkowski and Representative Young
November 23, 2015
(i)
TABLE OF CONTENTS
INTEREST OF AMICUS CURIAE.......................... 1
INTRODUCTION AND SUMMARY OFARGUMENT ...................................................... 2
BACKGROUND........................................................ 5
Statehood Act .................................................... 6
ANCSA............................................................. 10
ANILCA........................................................... 12
Section 103 of ANILCA................................... 16
ARGUMENT........................................................... 19
I. SECTION 103 OF ANILCA CLEARLYPROHIBITS PARK SERVICEREGULATORY JURISDICTIONOVER NON-FEDERAL LANDS ANDWATERS .................................................. 19
A. The Plain Text of Section 103(c)Does Not Authorize the ParkService to Regulate State andANCSA Lands WithinConservation System Units..................... 20
B. Nothing in Legislative HistorySupports the Ninth Circuit’sHolding that Section 103(c)Authorizes the Park Service toApply National Regulations toNonfederal Lands. ................................... 23
C. Congressional Silence Regardingthe Scope of RegulatoryJurisdiction Does Not EntitleAdministrative Agencies ToDeference. ................................................ 24
(ii)
II. EVEN IF CHEVRON STEP TWOGOVERNS, THE PARK SERVICE’SINTERPRETATION IS BASED ON ANIMPERMISSIBLE CONSTRUCTIONOF THE STATUTE. ................................ 27
A. The Park Service’s Construction ofSection 103(c) Encroaches onTraditional State Power inViolation of Congressional Intent. .......... 28
B. The Park Service’s Construction ofSection 103(c) ViolatesCommitments Made by CongressTo Native Corporations. .......................... 31
CONCLUSION ....................................................... 33
(iii)
TABLE OF AUTHORITIES
Page(s)
Cases
Amoco Prod. Co. v. Village of Gambell,480 U.S. 531 (1987) .............................. 5, 6, 16, 21
Andrus v. Utah,446 U.S. 500 (1980) .............................................. 8
Barnhart v. Sigmon Coal Co.,534 U.S. 438 (2002) ...................................... 19, 20
Beecher v. Wetherby,95 U.S. 517 (1877) .......................................... 8, 29
Chamber of Commerce v. NLRB,721 F.3d 152 (4th Cir. 2013) .............................. 25
Chevron U.S.A. Inc. v. Nat. Res. Def.Council, Inc.,467 U.S. 837 (1984) .................................... passim
City of Angoon v. Marsh,749 F.2d 1413 (9th Cir. 1984) .................... passim
City of Saint Paul, Alaska v. Evans,344 F.3d 1029 (9th Cir. 2003) ............................ 31
Dolan v. U.S. Postal Service,546 U.S. 481 (2006) .............................................. 6
TABLE OF AUTHORITIES—Continued
(iv)
Edmonds v. Compagnie GeneraleTransatlantique,443 U.S. 256 (1979) ............................................ 31
FERC v. Mississippi,456 U.S. 742 (1982) ............................................ 28
Friends of the Earth v. EPA,446 F.3d 140 (D.C. Cir. 2006) ............................ 26
Gonzales v. Oregon,546 U.S. 243 (2006) ............................................ 25
Hawaii v. Office of Hawaiian Affairs,556 U.S. 163 (2009) ................................ 10, 29, 30
Hess v. Port Auth. Trans-HudsonCorp.,513 U.S. 30 (1994) .............................................. 28
John v. United States,247 F.3d 1032 (9th Cir. 2001) .............................. 3
John v. United States,720 F.3d 1214 (9th Cir. 2013) .............................. 3
King v. Burwell,135 S. Ct. 2480 (2015) ........................................ 20
Koniag, Inc. v. Koncor Forest Res.,39 F.3d 991 (9th Cir. 1994) ................................ 11
TABLE OF AUTHORITIES—Continued
(v)
La. Pub. Serv. Comm’n v. FCC,476 U.S. 355 (1986) ............................................ 26
Metlakatla Indian Cmty., AnnetteIslands Reserve v. Egan,369 U.S. 45 (1962) ................................................ 6
NRDC v. EPA,749 F.3d 1055 (D.C. Cir. 2014) .......................... 25
PUD No. 1 of Jefferson Cnty. v. Wash.Dept. of Ecology,511 U.S. 700 (1994) ............................................ 31
Ry. Labor Exec. Ass’n v. Nat’lMediation Bd.,29 F.3d 655 (D.C. Cir. 1994) ........................ 25, 26
Solid Waste Agency of N. Cook Cty. v.U.S. Army Corps of Eng’rs,531 U.S. 159 (2001) ............................................ 28
State of Alaska v. Ahtna, Inc.,891 F.2d 1401 (9th Cir. 1989) ............................ 10
State of Alaska v. Babbitt,72 F.3d 698 (9th Cir. 1995) .................................. 3
State v. Lewis,559 P.2d 630 (Alaska 1977).................................. 7
TABLE OF AUTHORITIES—Continued
(vi)
Sturgeon v. Masica,768 F.3d 1066 (9th Cir. 2014) ........................ 5, 23
Tarrant Reg’l Water Dist. v. Herrmann,133 S. Ct. 2120 (2013) ........................................ 28
Texas v. United States,497 F.3d 491 (5th Cir. 2007) .............................. 25
Trustees for Alaska v. State,736 P.2d 324 (Alaska 1987).................... 6, 7, 8, 30
United States v. Atl. Richfield Co.,435 F. Supp. 1009 (D. Alaska 1977) .............. 9, 11
United States v. Brown,No. 94-30019, 1994 WL 16122537(9th Cir. May 17, 1994) ...................................... 18
Utah v. Andrus,486 F. Supp. 995 (D. Utah 1979) ....................... 10
Util. Air Regulatory Grp. v. EPA,134 S. Ct. 2427 (2014) ........................................ 26
Watt v. Alaska,451 U.S. 259 (1981) .............................................. 6
Whitman v. Am. Trucking Ass’ns, Inc.,531 U.S. 457 (2001) ...................................... 20, 25
Wilderness Soc’y v. Griles,824 F.2d 4 (D.C. Cir. 1987) ................................ 22
TABLE OF AUTHORITIES—Continued
(vii)
Statutes and Constitutional Provisions
16 U.S.C. § 410hh-2 ................................................. 17
16 U.S.C. § 410hh-4 ................................................. 17
16 U.S.C. § 539d ...................................................... 18
16 U.S.C. § 3101(c)................................................... 22
16 U.S.C. § 3101(d) ................................ 14, 17, 22, 23
16 U.S.C. § 3102(1) ............................................ 16, 23
16 U.S.C. § 3102(2) .................................................. 16
16 U.S.C. § 3102(3) .................................................. 16
16 U.S.C. § 3102(4) .................................................. 12
16 U.S.C. § 3102(11) ................................................ 16
16 U.S.C. § 3103....................................................... 30
16 U.S.C. § 3103(c)....................................... 16, 21, 23
16 U.S.C. § 3111................................................. 22, 23
16 U.S.C. § 3111-14 ........................................... 23, 30
16 U.S.C. § 3117-19 ........................................... 23, 30
16 U.S.C. § 3121....................................................... 17
TABLE OF AUTHORITIES—Continued
(viii)
16 U.S.C. § 3126....................................................... 22
16 U.S.C. § 3142(a)-(b)............................................. 18
16 U.S.C. § 3148....................................................... 22
16 U.S.C. § 3150....................................................... 22
16 U.S.C. § 3161....................................................... 22
16 U.S.C. § 3170....................................................... 17
16 U.S.C. § 3207(2) .................................................. 22
16 U.S.C. § 3213(a) ............................................ 15, 16
43 U.S.C. § 1601....................................................... 31
43 U.S.C. § 1601(a) .................................................. 11
43 U.S.C. § 1601(b) .................................................. 11
43 U.S.C. § 1603....................................................... 11
43 U.S.C. § 1605....................................................... 11
43 U.S.C. § 1606(i) ................................................... 12
43 U.S.C. § 1611....................................................... 12
Alaska Const. art. VIII, § 1 ....................................... 9
Alaska Const. art. VIII, § 2 ....................................... 9
TABLE OF AUTHORITIES—Continued
(ix)
Alaska Const. art. VIII, § 6 ....................................... 9
Alaska National Interest LandsConservation Act (“ANILCA”), Pub.L. No. 96-487, 94 Stat. 2371 (1980). .......... passim
Alaska Native Claims Settlement Act,Pub. L. No. 92-203, 85 Stat. 688(1971) .......................................................... passim
Alaska Stat. §§ 38.04.005 - .015................................ 9
Alaska Stat. § 44.99.100(a) ....................................... 9
Alaska Stat. § 44.99.110............................................ 9
Alaska Statehood Act, Pub. L. No. 85-508, 72 Stat. 339 (1958) ............................. passim
Submerged Lands Act of 1953, 67 Stat.29 (1982) ............................................................... 9
Regulations
36 C.F.R. § 1.2(a)(3) ........................................... 18, 27
General Provisions and Non-FederalOil and Gas Rights, 80 Fed. Reg.65,572 (Oct. 26, 2015)................................... 30, 31
TABLE OF AUTHORITIES—Continued
(x)
General Regulations for AreasAdministered by the National ParkService and National Park SystemUnits in Alaska, 61 Fed. Reg.35,133 (July 5, 1996) .......................................... 18
National Park System Units in Alaska,46 Fed. Reg. 31,836 (June 17, 1981)............ 17, 18
Other Authorities
104 Cong. Rec. 12,035 (1958) .................................... 9
125 Cong. Rec. 11,158 (1979) .................................. 23
125 Cong. Rec. 11,457 (1979) .................................. 13
126 Cong. Rec. 30,498 (1980) ............................ 13, 22
158 Cong. Rec. 15811-15816 (2011) ........................ 10
S. Rep. No. 96-413 (1979) ............................ 13, 23, 24
Eric Todderud, The Alaska Lands Act:A Delicate Balance BetweenConservation and Development, 8Pub. Land L. Rev. 143 (1987)............................... 2
James D. Linxwiler & Joseph J.Perkins, A Primer on Alaska Lands,61 Rocky Mtn. Min. L. Inst. 7-1(2015) .................................................. 5, 13, 15, 17
TABLE OF AUTHORITIES—Continued
(xi)
Statehood for Alaska: Hearings Beforethe Subcommittee on Territorial andInsular Affairs of the House Comm.on Interior and Insular Affairs, 85thCong., 1st Sess. 201-02 (1957) ............................. 8
INTEREST OF AMICUS CURIAE1
Amici curiae United States Senators DanSullivan and Lisa Murkowski and RepresentativeDon Young represent Alaska. Senator Murkowski isChairman of the Senate Committee on Energy andNatural Resources, which has jurisdiction overfederal public lands, including the National Parks.Senator Sullivan is a member of the SenateCommittee on Environment and Public Works.Both committees provide legislative oversight of theDepartment of the Interior. Representative Young,the longest serving current member of the Alaskacongressional delegation, served in Congress at thetime of enactment of the Alaska National InterestLands Conservation Act (“ANILCA”), Pub. L. No.96-487, 94 Stat. 2371 (1980), 16 U.S.C. § 3101 etseq., the statute at issue in this case, andcontributed to the passage of the bill.
Amici curiae thus are positioned to provide theCourt with the background and history whichfacilitates the proper interpretation of Section 103(c)of ANILCA.
Additionally, amici curiae have a solemn andabiding interest in safeguarding the properconstruction of the three landmark Acts whichdefine the federal government’s relationship to theState of Alaska, and the people of Alaska: the
1 No party or counsel for a party authored this brief inwhole or in part. No party, counsel for a party or person otherthan amici curiae or their counsel made any monetarycontribution intended to fund the preparation or submission ofthis brief. All parties have given their consent to this filing inletters that have been lodged with the Clerk.
2
Alaska Statehood Act, Alaska Native ClaimsSettlement Act, and ANILCA. To this end, amicicuriae are committed to seeing that federal courtsand agencies honor the commitments made in allthree Acts and that federal agencies faithfullycomply with the limits to their power imposed byCongress.
Finally, recent experience has shown thatfederal agencies, with alarming frequency, strain tofind ambiguity in even the plainest words. Agenciesthen claim they are entitled to deference underChevron2 to support their interpretations of thosewords. In the end, the result is an expansion ofagency authority far beyond that which Congressaffirmatively delegated. When courts defer toimplausible agency interpretations of statutorylanguage, they are not only allowing the executivebranch to increase federal authority unilaterally,they are undermining the separation of powers – thebalance so carefully struck in the Constitution – andmaking it nearly impossible for Congress toeffectively limit executive agency authority. That iswhat has happened in this case.
INTRODUCTION AND SUMMARY OFARGUMENT
In a series of landmark Acts affecting Alaskalands, Congress carefully and deliberately balancedAlaska’s interests with conservation concerns.3 To
2 Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467U.S. 837 (1984).
3 Eric Todderud, The Alaska Lands Act: A Delicate BalanceBetween Conservation and Development, 8 Pub. Land L. Rev.143 (1987).
3
achieve this balance, Congress set out firm limits onfederal authority to safeguard Alaska’s sovereignright to manage its lands and to enable Alaska’sNative peoples the opportunity to occupy, use anddevelop their aboriginal homeland. Not surprisinglythe executive branch, feeling constrained by thelimits Congress has placed on that authority, haspushed and tested the boundaries of its authorityduring much of Alaska’s history. Agencies, after all,do what they regard as expedient and necessary,backing down only when the courts tell them theyhave overreached.
In this case, the National Park Service (“ParkService”) misread Section 103(c) of ANILCA toexpand its authority and promulgate regulationsthat ban the use of hovercrafts on State of Alaskalands located within a National Preserve.4
The Park Service’s interpretation of Section 103takes a provision that limits federal authority andtransforms it into a wellspring of power overAlaska’s lands and resources. Worse, over the lastseveral years, the Park Service has improperlyasserted the right to impose restrictions on allnonfederal lands located within conservation systemunits in Alaska.
Unfortunately, rather than limit federal agencypower, two federal courts have endorsed this
4 Amici are not asking this Court to overturn or revisit theNinth Circuit’s “Katie John” subsistence decisions: John v.United States (Katie John III), 720 F.3d 1214 (9th Cir. 2013),John v. United States (Katie John II), 247 F.3d 1032 (9th Cir.2001) (en banc) (per curiam), or State of Alaska v. Babbitt(Katie John I), 72 F.3d 698 (9th Cir. 1995).
4
unwarranted expansion of federal jurisdiction. TheNinth Circuit’s opinion, in particular, will sowconfusion and tempt the executive branch tocontinue eroding the line between the federal andstate spheres in contravention of this Court’sfederalism jurisprudence.
The Ninth Circuit’s decision should be vacatedbecause it violates the plain meaning of Section103(c) and subverts the intent of Congress. Thepurpose in Section 103(c) is to insulate nonfederallands located within conservation system units fromPark Service regulatory control. This provisiontherefore honors the commitments made byCongress to the State of Alaska and NativeCorporations in prior legislation.
The Ninth Circuit’s opinion, however, gives thePark Service, and other federal land managementagencies, carte blanche to undermine authorityexpressly reserved by Congress to Alaska andNative Corporations. Had Congress intended toencroach on Alaska’s sovereignty over land use, itwould have said so affirmatively.
In short, the Park Service’s unilateralexpansion of its authority over Alaska’s lands notonly usurps Congress’ legislative authority inviolation of the separation of powers, it also comesat great expense to the State of Alaska. It is timefor this Court to put to an end the federalgovernment’s long history of wrongfully seizingpower over the State of Alaska’s lands and resourcesto the detriment of the State’s citizens, such as Mr.Sturgeon.
5
BACKGROUND
Contrary to the Park Service’s claim, ANILCAis not just a statute designed to protect federallands.5 See Brief in Opposition (“BIO”) at 5, 17;Sturgeon v. Masica, 768 F.3d 1066, 1075-76 (9th Cir.2014). Rather, ANILCA serves as the final Act ofCongress dealing with federal land disposal inAlaska. See Amoco Prod. Co. v. Village of Gambell,480 U.S. 531, 549 (1987) (“ANILCA’s primarypurpose was to complete the allocation of federallands in the State of Alaska, a process begun withthe Statehood Act in 1958 and continued in 1971 inANCSA.”); id. at 550 & n.18 (citing H.R. Rep. No.96-97, pt. 1, p. 135 (1979)). Because ANILCA is adirect outgrowth of the Alaska Statehood Act(“Statehood Act”6) and the Alaska Native Claims
5 See James D. Linxwiler & Joseph J. Perkins, A Primer onAlaska Lands, 61 Rocky Mtn. Min. L. Inst. 7-1–7-3 (2015),available at: www.rmmlf.org/AI61-Ch7.pdf.
It would be a significant misstatement todescribe ANILCA solely as a statute creatingnational parks, refuges, wilderness areas, andthe like, without recognizing that perhaps 75%of its content served its other purposes. ANILCAembodies significant congressionalcompromise. ANILCA’s massive conservationwithdrawals could not be enacted without anaccommodation of Native and state needs. Forthese reasons, ANILCA consists of a carefullycrafted political balance between the creationof new or enlarged conservation system units(CSU) and the protection of Native, state, andother land uses on these lands and other lands.
Id. at 7-33-7-34. (emphasis added) (citations omitted).
6 Pub. L. No. 85-508, 72 Stat. 339 (1958).
6
Settlement Act (“ANCSA”7), ANILCA cannot be readin isolation of the commitments made by Congressto the State of Alaska (“Alaska”), and to Alaskans,in these prior Acts.8 See Amoco, 480 U.S. at 552-55.The ANILCA provision at the heart of this case,Section 103(c), must therefore be interpreted in lightof the structure and purposes of the Statehood Actand ANCSA.
Statehood Act
Alaska’s admission to the Union did not comeeasily. After Alaska’s purchase in 1867, it tookalmost fifty years before it was organized as afederal territory, and it was not seriously consideredas a candidate for statehood until after the SecondWorld War. A desire to control Alaska’s lands andresources became a coalescing force that motivatedmany to support the statehood effort. See MetlakatlaIndian Cmty., Annette Islands Reserve v. Egan, 369U.S. 45, 47 (1962).
Opponents to statehood raised several majorobjections, including Alaska’s small population,narrow tax base, and the questionable financialmeans to govern itself. Trustees for Alaska v. State,736 P.2d 324, 335-36 (Alaska 1987).
7 Pub. L. No. 92-203, 85 Stat. 688 (1971) (codified asamended at 43 U.S.C. §§ 1601-1629).
8 Statutes should be interpreted in light of “any precedentsor authorities that inform the analysis.” Dolan v. U.S. PostalService, 546 U.S. 481, 486 (2006); Watt v. Alaska, 451 U.S. 259,266 (1981) (“The circumstances of the enactment of particularlegislation may persuade a court that Congress did not intendwords of common meaning to have their literal effect.”).
7
To overcome these objections, advocates ofstatehood argued that Congress should conveysignificant lands to the new state in the hope thatthe lands would generate enough revenue so theState could govern itself. This argument won theday.
That Congress recognized the financialburden awaiting the new state is clearfrom its debates. It is equally clear thatthe large statehood land grant and thegrant of the underlying mineral estatewere seen as important means bywhich the new state could meet thatburden. Congress, then, grantedAlaska the mineral estate with theintention that the revenue generatedtherefrom would help fund the newstate's government.
Id. at 337.
Congress eventually agreed to admit Alaskainto the Union on particular terms set out in theStatehood Act. Id. at 337. The Act’s enactment,however, did not complete the statehood process;before Alaska could enter the Union, the Compactrequired ratification by the “State and its people.”Statehood Act, § 8(b), 72 Stat. 344 (1958). Based onthe promises embedded in the Statehood Act,Alaskans consented to Statehood on August 26,1958, when they ratified the Compact.9 State v.Lewis, 559 P.2d 630, 640 (Alaska 1977).
9 The State of Alaska was “admitted into the Union on anequal footing with the other States,” and its boundaries were
(continued…)
8
The centerpiece of the Compact between theState of Alaska and the United States is Alaska’sright to select lands and manage these lands for thepublic’s benefit.10 See Trustees for Alaska, 736 P.2dat 335 (“The primary purpose of the statehood landgrants contained in section 6(a) and (b) of theStatehood Act was to ensure the economic and socialwell-being of the new state.”).11 It was left to the
(continued)defined as “all the territory, together with the territorialwaters appurtenant thereto, now included in the Territory ofAlaska.” Statehood Act §§ 1, 2, 72 Stat. 339. Congress alsomade the Submerged Lands Act of 1953, 67 Stat. 29, asamended, 43 U. S. C. § 1301 et seq. (1982 ed. and Supp. III),applicable to the State. Statehood Act § 6(m), 72 Stat. 343.
10 This Court has characterized the land grant provisions ofstatehood acts as a “‘solemn agreement’ which in some waysmay be analogized to a contract between private parties,”Andrus v. Utah, 446 U.S. 500, 507 (1980), and as “anunalterable condition of the admission, obligatory upon theUnited States.” Beecher v. Wetherby, 95 U.S. 517, 523 (1877).
11 Alaska Territorial Senator William Egan commented onfuture development of “known deposits of almost every type ofmineral” as the source of future Alaskan income in response toRepresentative Miller’s questions on whether Egan could “seewhere you would get much income out of this 103 million acresyou might select around, bearing in mind most of the forestsand good land has been set aside by the [federal] Governmentnow, or by the military? How much income would you derivefrom that to begin with?” Statehood for Alaska: HearingsBefore the Subcommittee on Territorial and Insular Affairs ofthe House Comm. on Interior and Insular Affairs, 85th Cong.,1st Sess. 201-02 (1957) (remarks of Rep. Miller and WilliamEgan, Alaska Territorial Senator and President of the AlaskaConstitutional Convention). See also United States v. Atl.Richfield Co., 435 F. Supp. 1009, 1016 (D. Alaska 1977) (“Theintent of Congress was, of course, to provide the new state witha solid economic foundation.”); 104 Cong. Rec. 12,035 (1958)
(continued…)
9
new state to make the most of its selection optionsand to fully utilize these lands in order to satisfy theState’s budgetary obligations and the needs ofAlaskans.
For these reasons, Alaska guards the rightsconferred under the Statehood Act and views themanagement of its lands, and access to them, as anessential aspect of its sovereignty which sustainsAlaska’s economy, culture, and way of life.12
Fidelity to the commitments made in the StatehoodAct mandate that the State, Alaskans, and Alaska’scongressional delegation must vigorously contest
(continued)(statement of Senator Kuchel) (“[T]he State of Alaska will beable to make maximum use of the property which it will obtainunder the bill from the Federal Government.”).
12 See, e.g., Alaska Const. art. VIII, §§ 1, 2, 6; Alaska Stat.§§ 38.04.005 - .015 (setting out the State’s land managementpolicies); Alaska Stat. § 44.99.100(a) (declaring that the stateeconomic development policy is to “further the goals of a soundeconomy, stable employment, and a desirable quality of life,the legislature declares that the state has a commitment tofoster the economy of Alaska through purposeful developmentof the state’s abundant natural resources and productivecapacity.”);
The legislature, acting under art. VIII, sec. 1 ofthe Constitution of the State of Alaska, in aneffort to further the economic development ofthe state, to maintain a sound economy andstable employment, and to encourageresponsible economic development within thestate for the benefit of present and futuregenerations through the proper conservationand development of the abundant mineralresources within the state . . .”
Alaska Stat. § 44.99.110
10
any unwarranted expansion of federal jurisdictionthat interferes with the use of and access to Alaska’slands and resources.13 After all, the rights grantedto the State of Alaska in the Statehood Act cannot –and should not – be unilaterally diminished orabrogated by a federal agency. See Hawaii v. Officeof Hawaiian Affairs, 556 U.S. 163, 176 (2009)(“‘[T]he consequences of admission areinstantaneous, and it ignores the uniquely sovereigncharacter of that event to suggest that subsequentevents somehow can diminish what has alreadybeen bestowed’. And that proposition applies afortiori where virtually all of the State’s public lands. . . are at stake.”) (quoting, in part, Idaho v. UnitedStates, 533 U.S. 262, 284 (2001) (Rehnquist, J.dissenting)); see also State of Alaska v. Ahtna, Inc.,891 F.2d 1401, 1404, 1406 (9th Cir. 1989).14
ANCSA
In 1964 and 1965 the State selected, and theSecretary of the Interior tentatively approved,approximately 1,650,000 acres of land on the ArcticSlope. The State selected these lands because ofreports of oil deposits. Drilling on state lands
13 See 158 Cong. Rec. 15811-15816 (2011) (remarks of Sen.Murkowski).
14 Courts have also long-recognized that school landslegislation, which are analogous to statehood compacts, are tobe construed liberally in favor of the recipient state. Utah v.Andrus, 486 F. Supp. 995, 1001-02 (D. Utah 1979) (citingWyoming v. United States, 255 U.S. 489, 508 (1921)). This is“to place the new states on an ‘equal footing’ with the originalthirteen colonies and to enable the state to [fund the schools].”Id. at 1002 (citing Lassen v. Arizona Highway Dep’t, 385 U.S.458, 463 (1967)).
11
shortly thereafter confirmed one of the largest oilfields ever discovered. After this discovery, in 1969,Alaska auctioned oil and gas leases on the State-selected Arctic Slope lands. The lease sale wasvigorously protested. Atl. Richfield Co., 435 F. Supp.at 1017-18.
Partly in response to the mounting protests, theSecretary of the Interior instituted a freeze,suspending federal patenting and approval ofAlaska’s selections pending a legislative settlementof the controversy. Id. at 1018. Because theadministratively imposed freeze was a seriousthreat to Alaska’s economy, Alaska turned toCongress for a solution. At that time, Native leadershad also concluded they should petition Congress fora prompt legislative settlement of their land claims.
Eventually, all interests obtained a legislativesettlement that included substantial grants of landin addition to monetary compensation for theextinguishment of Native claims. Koniag, Inc. v.Koncor Forest Res., 39 F.3d 991, 995-97 (9th Cir.1994); City of Angoon v. Marsh, 749 F.2d 1413,1414-15 (9th Cir. 1984). The express purpose of theAlaska Native Claims Settlement Act was to meetthe “immediate need for a fair and just settlement ofall claims by Natives and Native groups of Alaska,based on aboriginal land claims.” 43 U.S.C.§ 1601(a). Congress found that a settlement had tobe accomplished “rapidly, with certainty, . . . [and]without litigation . . .” Id. at § 1601(b).
Key provisions of ANCSA include Section 4,which extinguished Native land claims. Id. at§ 1603. As consideration for the extinguishment,Section 6 provides for a cash settlement of$962,500,000 to be paid over a period of years. Id. at
12
§ 1605. In addition to the monetary grant, ANCSAgranted Alaska Natives fee title to more than 40million acres of lands to be selected by Nativevillages and regional corporations from lands inAlaska withdrawn for that purpose. Id. at § 1611.All future revenues to be derived from the landpatented to the Natives are the property of theNative corporations. Id. at § 1606(i).
ANCSA was unique in the realm of NativeAmerican land claim settlements because it vestedcontrol of the land directly in the electedrepresentatives of Alaska’s Native peoples, and notin the federal government as trustee. It was fullyexpected that some of this land would be developedfor its vast natural resource potential.
ANILCA
The final chapter in the federal government’sland allocation process occurred in 1980 whenCongress enacted ANILCA and transferred over 100million acres of federal lands in Alaska (an arealarger than the State of California) into variousconservation units, which precluded development onmuch of these lands.15 The legislation followedseveral years of contentious debate over the properuse and disposition of federal lands in Alaska.
The most forceful concerns related to proposedlegislation were raised by the Alaska delegation.Congressman Young objected that without adequateprotections to limit federal jurisdiction over state
15 Under ANILCA, various federal agencies were taskedwith managing national parks, wildlife refuges, wild andscenic rivers, national trails, and national monuments. 16U.S.C. § 3102(4).
13
owned lands, the proposed legislation would violatethe promises made by Congress to Alaska andAlaskans in the Statehood Act and ANCSA.16
The Alaska delegation was also extremelyconcerned that proposed amendments to thelegislation would harm Alaska’s economy andculture. As Congressman Young queried during onedebate: “Can you imagine having to go out on theland you have been able to utilize for the last 300years, you and your ancestors, and have some littleperson in a green uniform say, ‘No, you cannot, youhave to have a permit’?’”17
Thus, to enact the legislation, the advocates ofANILCA had to be willing to accept a balancebetween conservation of federal lands and economicdevelopment of State and Native Corporation landswhile also honoring the State of Alaska’s sovereignright to manage its lands free of intrusive federaloversight.18 This goal is reflected in the Act’s“statement of purpose,” which provides:
16 125 Cong. Rec. 11,457 (1979) (Congressman Youngargued that proposed amendments would deprive Alaskans ofthe promises made by Congress); S. Rep. No. 96-413, at 446(1979) (“The bottom line of this situation is the denial of thefull range of use of [State and Native] lands and hence, the defacto taking of property rights which have been granted to theState and to the Native corporations by the Alaska StatehoodAct and by the Alaska Native Claims Settlement Act.”).
17 125 Cong. Rec. 11,457 (1979).
18 126 Cong. Rec. 30,498 (1980); see generally James D.Linxwiler & Joseph J. Perkins, A Primer on Alaska Lands, 61Rocky Mtn. Min. L. Inst. at 7-33-35.
14
This Act provides sufficient protectionfor the national interest in the scenic,natural, cultural and environmentalvalues on the public lands in Alaska,and at the same time provides adequateopportunity for satisfaction of theeconomic and social needs of the Stateof Alaska and its people; accordingly,the designation and disposition of thepublic lands in Alaska pursuant to thisAct are found to represent a properbalance between the reservation ofnational conservation system units andthose public lands necessary andappropriate for more intensive use anddisposition[.]
16 U.S.C. § 3101(d)(emphasis added). To carry outthis objective, ANILCA contains provisions designedto preserve the commitments made to the State ofAlaska and Native Corporations in the StatehoodAct and ANCSA.
For example, ANILCA provided that no furtherwithdrawals would follow except through heavilycircumscribed formal processes. This condition wasset forth in what is commonly referred to as the “no-more” clause,19 providing that no federal agency
19 This clause provides that,
No future executive branch action whichwithdraws more than five thousand acres, inthe aggregate, of public lands within the Stateof Alaska shall be effective except bycompliance with this subsection. To the extentauthorized by existing law, the President or theSecretary may withdraw public lands in the
(continued…)
15
may take any action that “withdraws” additionalpublic lands for preservation. 16 U.S.C. § 3213(a).
ANILCA contains many other provisions thatwere also intended to limit federal oversight ofAlaska lands and Native Corporation lands and toensure that Alaska’s unique needs were honored byfederal agencies. These provisions were deemedcritical by Congress because the conservationsystem units created or enlarged by ANILCA –covering over 100 million acres of national parks,refuges, preserves, and monuments – surrounded 40million acres of State and Native Corporation lands,which became islands within the federally managedconservation system units. See James D. Linxwiler& Joseph J. Perkins, A Primer on Alaska Lands, 61Rocky Mtn. Min. L. Inst. at 7-33-35.
In addition to these protections, Section 103(c)is, perhaps, the most important provision inANILCA from a federalism perspective because it(1) protects the nonfederal lands located withinconservation units from federal oversight and (2)confirms the commitments made by Congress in theStatehood Act and ANCSA.
(continued)State of Alaska exceeding five thousand acresin the aggregate, which withdrawal shall notbecome effective until notice is provided in theFederal Register and to both Houses ofCongress. Such withdrawal shall terminateunless Congress passes a joint resolution ofapproval within one year after the notice ofsuch withdrawal has been submitted toCongress.
16 U.S.C. § 3213(a) (emphasis added).
16
Section 103(c) of ANILCA
In Section 103(c), Congress made clear thatonly “public lands” (i.e., federal lands20) within theboundaries of conservation system units (e.g.,national parks) “shall be deemed to be included as aportion of such unit,” and no lands owned by “theState, [a] Native Corporation, or [a] private partyshall be subject to the regulations applicable solelyto public lands within such units.” 16 U.S.C.§ 3103(c). Section 103(c) therefore provides thatonly federal lands and waters falling withinconservation system unit boundaries are considereda part of the unit, thus excluding Alaska and NativeCorporation lands from Park Service oversight. 16U.S.C. §§ 3103(c), 3102(1)-(3), (11).
There are two primary reasons why thisprovision was added to ANILCA. First, Congresswanted to reinforce Alaska’s and NativeCorporations’ right to manage their respectiveresources and lands, which necessarily includesaccess to lands conveyed under the Statehood Actand ANCSA.21 Second, Congress understood that
20 Under ANILCA, “the term ‘public lands’ means landsituated in Alaska which . . . are Federal lands.” 16 U.S.C.§ 3102(3). “The term ‘Federal land’ means lands the title towhich is in the United States.” 16 U.S.C. § 3102(2). And “[t]heterm ‘land’ means lands, waters, and interests therein.” 16U.S.C. § 3102(1). In short, public lands are lands, waters, andinterests therein, the title to which is in the United States.Amoco Prod. Co., 480 U.S. at 548 n.15.
21 ANILCA “provides adequate opportunity for satisfactionof the economic and social needs of the State of Alaska and itspeople.” 16 U.S.C. § 3101(d). To this end, ANILCA protectsmining operations, see, e.g., 16 U.S.C. § 3170; promotes oil and
(continued…)
17
Alaska is very different from other states and thatits vast landscape, sparse population, subsistencelifestyles, and lack of infrastructure called forunique rules that would not apply to federal parksin the lower-48.22
For many years after ANILCA was enacted, thefederal government, including the Park Service,understood well the limitations imposed byCongress in Section 103(c). For example, the ParkService restricted the applicability of its regulationsto “‘federally owned’ lands . . . within park areaboundaries.” National Park System Units in Alaska,46 Fed. Reg. 31,836, 31,843 (June 17, 1981) (citing126 Cong. Rec. 11,115 (1980) and 126 Cong. Rec.15,130-31 (1980)). The Park Service elaborated:“[t]hese regulations would not apply to activities
(continued)gas development, see, e.g., id. § 3142(a)-(b); and supports theAlaska timber industry, see, e.g., id. § 539d. See also Marsh,749 P.2d at 1418.
22 For example, ANILCA grants special authorization forhunting in ANILCA national preserves, 16 U.S.C. § 410hh-2; itprotects commercial fishing rights and related uses indesignated ANILCA monuments and preserves, id. § 410hh-4;it allows commercial fishing and related uses within ANILCANational Wildlife Refuge System units, id.; and it explicitlypermits traditional modes of surface transportation, includingsnowmobiles and motorboats, on ANILCA public lands forsubsistence purposes, id. § 3121. In short, ANILCA recognizesthat lands in Alaska must be managed differently from landselsewhere, and the statute provides for this by imposingnumerous specific restraints on federal authority over publicand nonpublic lands. See James D. Linxwiler & Joseph J.Perkins, A Primer on Alaska Lands, 61 Rocky Mtn. Min. L.Inst. at 7-4, 7-33-35.
18
occurring on State lands. Similarly, theseregulations would not apply to activities occurringon Native or any other non-federally owned landinterests located inside park area boundaries.” Id.
Given this history, it is not surprising that theJustice Department admitted that it could notprosecute an individual who had taken a seal fromAlaskan waters for a ceremonial potlatch. See Briefof the United States, United States v. Brown, No.94-30019, 1994 WL 16122537, at *5-6 (9th Cir. May17, 1994) (Justice Department moved for dismissalbecause it concluded that the federal governmentneither “own[ed] the submerged land” nor had“legislative jurisdiction” over such lands).
Not satisfied with this limitation on itsauthority, the Park Service eventually circumventedANILCA’s restrictions on federal authority byissuing 36 C.F.R. § 1.2(a)(3), which is the regulationat the heart of this case. The Park Service declared“that NPS regulations otherwise applicable withinthe boundaries of a National Park System unitapply on and within waters subject to thejurisdiction of the United States located within thatunit, including navigable waters and areas withintheir ordinary reach . . . irrespective of ownership ofsubmerged lands, tidelands or lowlands, andjurisdictional status.” General Regulations for AreasAdministered by the National Park Service andNational Park System Units in Alaska, 61 Fed. Reg.35,133, 35,136 (July 5, 1996) (quoting 36 C.F.R.§ 1.2(a(3)). In so doing, the Park Service’s powergrab expanded its jurisdiction over Alaska lands andresources in blatant disregard of the “balance”Congress struck in ANILCA.
19
ARGUMENT
The Park Service’s regulation of nonfederallands within conservation system units in Alaskaviolates the plain meaning of Section 103(c),disregards Congress’ intent in ANILCA, ANCSA,and the Statehood Act, and offends a hallmark offederalism: State control over land use decision-making.
I. SECTION 103 OF ANILCA CLEARLYPROHIBITS PARK SERVICEREGULATORY JURISDICTION OVERNON-FEDERAL LANDS AND WATERS
According to the Park Service, the case shouldbe resolved based on Chevron deference. Todetermine if an agency is entitled to deference,Chevron step one requires courts to examine “thelanguage of the statute,” and “[t]he inquiry ceases ifthe statutory language is unambiguous and thestatutory scheme is coherent and consistent.”Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450(2002) (quotations omitted). When determining themeaning, the Court must look at how the words areused in the entire statutory scheme:
[O]ftentimes the meaning—orambiguity—of certain words or phrasesmay only become evident when placedin context. So when deciding whetherthe language is plain, the Court mustread the words in their context andwith a view to their place in the overallstatutory scheme . . . Our duty, afterall, is to construe statutes, not isolatedprovisions.
20
King v. Burwell, 135 S. Ct. 2480, 2483, 2489 (2015)(quotations and citations omitted)
Thus, the proper Chevron step one inquirycenters on whether Section 103(c), when construedin the context of ANILCA, grants the Park Servicethe authority to trample on Alaska’s sovereigntyand diminish the property rights of NativeCorporations. Cf., Barnhart, 534 U.S. at 442 (“Thequestion presented is whether the Coal Act permitsthe Commissioner to [take specified action]”);Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457,468 (2001) (“[R]espondents must show a textualcommitment of authority to the EPA[.]”).
As explained by Sturgeon, ANILCA’s text,purpose, structure, and legislative history conveysCongress’ unmistakable intent to preclude theapplication of federal conservation regulations toState and private inholdings within conservationsystem units – i.e., Congress specified in ANILCAthat nonfederal lands within conservation systemunits are not subject to regulation as though theyare part of the National Park System. Petitioner’sOpening Brief at 21-30.
A. The Plain Text of Section 103(c) DoesNot Authorize the Park Service toRegulate State and ANCSA Lands WithinConservation System Units.
Section 103(c) is clear and concise. It provides:Only those lands within the boundariesof any conservation system unit whichare public lands (as such term is definedin this Act) shall be deemed to beincluded as a portion of such unit. Nolands which, before, on, or after
21
December 2, 1980, are conveyed to theState, to any Native Corporation, or toany private party shall be subject to theregulations applicable solely to publiclands within such units. If the State, aNative Corporation, or other ownerdesires to convey any such lands, theSecretary may acquire such lands inaccordance with applicable law(including this Act), and any such landsshall become part of the unit, and beadministered accordingly.
16 U.S.C. § 3103(c).
The statute thus provides that: (1) only “publiclands”23 are part of conservation system units inAlaska; (2) federal land management agencies haveno authority to exercise regulatory control overState, Native Corporation, and private lands locatedwithin those conservation system units; (3) the onlylands that may be administered as part of theNational Park System are those that have beenconveyed to the United States; and (4) while thePark Service cannot regulate nonfederal landswithin conservation system units, federal laws ofgeneral applicability, like the Clean Air Act or CleanWater Act, do apply to nonfederal lands becausethose general laws are not “applicable solely topublic lands.”
23 Public lands are lands, waters, and interests therein, thetitle to which is in the United States. Amoco Prod. Co., 480U.S.at 548 n.15.
22
This construction of Section 103(c) is supportedby the purpose of ANILCA, which delegated certainresponsibilities to federal land managementagencies to conserve and protect federal lands whileensuring that nonfederal lands within conservationsystem units would not be managed by these samefederal agencies as if they were federally owned.24
Marsh, 749 F.2d at 1417 (observing that “thedrafters of ANILCA never intended the merelocation of boundary lines on maps delineating theoverall conservation system to indicate that privatelands . . . were to be treated as public lands”).
The structure of ANILCA also supports thisplain reading, as demonstrated by the fact that (1)ANILCA is a direct outgrowth of the Statehood Actand ANCSA; and (2) in ANILCA Congress sought tohonor the commitments made to the State of Alaskaand Native Corporations in the Statehood Act andANCSA. See, e.g., 16 U.S.C. §§ 3101(c)-(d); 3111,3126, 3148, 3150, 3161, 3207(2); cf., WildernessSoc’y v. Griles, 824 F.2d 4, 7 (D.C. Cir. 1987)(observing that Alaska’s “[n]avigable waters andtheir submerged lands are subject to state control inall cases”). In addition, to implement thiscommitment, numerous statutory provisions inANILCA expressly prohibited federal agencies likethe Park Service from adopting regulations thatwould interfere with Alaska’s sovereign right tomanage State lands for the economic and socialneeds of the State, and by expressly safeguarding
24 See 126 Cong. Rec. 30,498 (1980) (amending the bill to“[s]pecify[] that only public lands (and not State or privatelands) are to be subject to the conservation system unitregulations applying to public lands”).
23
Alaska’s sovereign authority over nonfederal lands.See 16 U.S.C. §§ 3101(d), 3102(1), 3103(c), 3111-14,3117-19.
B. Nothing in Legislative HistorySupports the Ninth Circuit’s Holding thatSection 103(c) Authorizes the Park Serviceto Apply National Regulations toNonfederal Lands.
The Park Service, like the Ninth Circuit, mayattempt to misrepresent legislative history to distortthe plain meaning of the Section 103(c). Sturgeon,768 F.3d at 1078-79. The Court should reject suchan attempt because the legislative history isunequivocal: Congress’ primary objective inadopting Section 103(c) was to prevent nonfederallands newly-surrounded by conservation systemunits from Park Service oversight and regulation.See Marsh, 749 F.2d at 1417-18 (“section 103(c) wasadded to ANILCA . . . for the express purpose of‘specifying that only public lands (and not Stateowned or private lands) are to be subject to theconservation system unit regulations applying topublic lands’”) (quoting, in part, 126 Cong. Rec.30,498) (emphasis added).
Section 103(c)’s House sponsor stated that hewanted to “make clear beyond any doubt that anyState, Native, or private lands, which may lie withinthe outer boundaries of the conservation systemunit are not parts of that unit and are not subject toregulations which are applied to public lands,which, in fact, are part of the unit.” 125 Cong. Rec.11,158 (1979); see also S. Rep. No. 96-413, at 303(1979) (“Those private lands, and those public lands,owned by the State of Alaska . . . are not to beconstrued as subject to the management regulations
24
which may be adopted to manage and administerany national conservation system unit which isadjacent to, or surrounds, the private or non-Federalpublic lands.”).
And while nonfederal lands located withinconservation system units would not be subjected toany Park Service regulations, Congress also wantedto make clear that laws of general applicabilitywould apply to such lands. S. Rep. No. 96-413, at303 (1979) (suggesting that Section 103(c)’s use of“solely” was to clarify that “Federal laws andregulations of general applicability to both privateand public lands, such as the Clean Air Act . . .would be applicable to private or non-Federal publicland in holdings within [CSUs] . . . and thus areunaffected by the passage of the bill”).
Accordingly, Congress did not grant the ParkService the authority to transform Section 103 (c)into a potent source of far-reaching regulatoryauthority over 40 millions of acres of State, Native,and private lands and resources located withinconservation system units.
C. Congressional Silence Regarding theScope of Regulatory Jurisdiction Does NotEntitle Administrative Agencies ToDeference.
In its opposition to Sturgeon’s Petition forCertiorari, the Park Service claims that the Courtshould disregard the plain meaning of Section 103(c)and grant it deference because Congress did notexpressly forbid Park Service regulation ofnonfederal lands within conservation units. BIO at19.
25
By asserting authority to do whatever Congressdid not explicitly forbid, the Park Service turnsChevron on its head. Were this Court to accept sucha formulation and “presume a delegation of powerabsent an express withholding of such power,agencies would enjoy virtually limitless hegemony, aresult plainly out of keeping with Chevron and quitelikely with the Constitution as well.” Ry. LaborExec. Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671(D.C. Cir. 1994) (en banc); Chamber of Commerce v.NLRB, 721 F.3d 152, 160 (4th Cir. 2013) (“we do notfind that Chevron’s second step is implicated anytime a statute does not expressly negate theexistence of a claimed administrative power.”)(emphasis in original) (quotation and citationomitted); Texas v. United States, 497 F.3d 491, 502(5th Cir. 2007) (rejecting the federal appellees’argument that “congressional ‘silence’ creates animplicit delegation under Chevron”).
Yet the Park Service blithely contends that “theSecretary is entitled to deference to reasonableinterpretations of the scope of her authority underANILCA.” BIO at 19. But, again, agencies do notpossess authorities beyond those conferred in thesubstantive provisions enacted by Congress. SeeGonzales v. Oregon, 546 U.S. 243, 264-65 (2006) (“Itwould go . . . against the plain language of the textto treat a delegation for the ‘execution’ of [theAttorney General’s] functions as a furtherdelegation to define other functions well beyond the[statute’s] specific grants of authority.”); Am.Trucking Ass’ns, 531 U.S. at 468 (finding it“implausible that Congress would give to the EPAthrough . . . modest words the power to determinewhether implementation costs should moderatenational air quality standards.”); NRDC v. EPA, 749
26
F.3d 1055, 1063 (D.C. Cir. 2014) (“we haveconsistently held that EPA’s authority to issueancillary regulations is not open-ended, particularlywhen there is statutory language on point.”).
Further, to assert, as the Park Service does,that it has broad power to define the scope of itsauthority under ANILCA “is both flatly unfaithful tothe principles of administrative law . . . and refutedby precedent.” Ry. Labor Exec. Ass’n, 29 F.3d at 671.There should be no dispute that the Park Service“literally has no power to act . . . unless and untilCongress confers power upon it.” La. Pub. Serv.Comm’n v. FCC, 476 U.S. 355, 374 (1986); see alsoUtil. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427,2446 (2014) (“We reaffirm the core administrative-law principle that an agency may not rewrite clearstatutory terms to suit its own sense of how thestatute should operate.”); Friends of the Earth v.EPA, 446 F.3d 140, 145 (D.C. Cir. 2006) (“EPA maynot avoid the Congressional intent clearly expressedin the text simply by asserting that its preferredapproach would be better policy.”) (citation andquotation omitted).
Deference is a powerful thing, andunsurprisingly the executive branch often seeks tocreate ambiguity where none exists, the better toeffectuate its own policies rather than those of theCongress. Left unchecked, this dynamic underminesCongress’ legislative function, ceding it instead tothe federal executive. That is how the balance ofpower between the branches of the federalgovernment is distorted. No meaningful system ofchecks and balances can exist where the executivebranch can vest itself with legislative powers. Norcan the system of checks and balances work if the
27
judicial branch does not stop unwarranted powergrabs. And while agencies would prefer to have theleeway to interpret statutes according to their policypreferences, the Constitution does not provide themsuch authority. This is particularly true when, ashere, the plain meaning of Section 103(c) prohibitsthe Park Service from regulating nonfederal landsin Alaska that are located within conservationsystem units.
****
In sum, Chevron honors the bedrock principlethat statutes control agency action. In step one,courts examine the words of the statute todetermine whether they resolve the dispute. Whena particular agency power is absent from thegoverning statute there is no ambiguity and no needto proceed to Chevron step two. The controllingwords in this case are clear: Congress did notauthorize the Park Service to apply regulations toState of Alaska, Native, and private lands withinconservation system units. Accordingly, the ParkService’s promulgation and enforcement of 36 C.F.R.§ 1.2(a)(3) clearly exceeded its statutory authority.
II. EVEN IF CHEVRON STEP TWOGOVERNS, THE PARK SERVICE’SINTERPRETATION IS BASED ON ANIMPERMISSIBLE CONSTRUCTION OFTHE STATUTE.
The text of Section 103(c), the overall structureand purpose of ANILCA, and legislative historyplainly show that Congress prohibited the ParkService from regulating nonfederal lands withinconservation system units as though such lands arepart of the National Park System. But even if this
28
Court finds ambiguity in the statute, the ParkService’s expansive interpretation of Section 103(c)should be rejected because it is based on aconstruction of ANILCA that impairs the State ofAlaska’s sovereign right to manage state lands andunduly interferes with Native Corporations’statutory right to access and develop Native ownedlands.
A. The Park Service’s Construction ofSection 103(c) Encroaches on TraditionalState Power in Violation of CongressionalIntent.
Courts must reject an agency’s statutoryinterpretation that “alters the federal-stateframework by permitting federal encroachmentupon a traditional state power” without a “clearindication that Congress intended that result.” SolidWaste Agency of N. Cook Cty. v. U.S. Army Corps ofEng’rs (“SWANCC”), 531 U.S. 159, 172-73 (2001).Indeed, it is well established that deference shouldnot be afforded to a federal agency that seeks tostrip power properly vested with states. Id. at 174(courts should disregard an agency’s interpretationif it “would result in a significant impingement ofthe States’ traditional and primary power over landand water use.”).
Here, it cannot be disputed that Alaska’sownership of its submerged lands is an “essentialattribute of sovereignty.” Tarrant Reg’l Water Dist.v. Herrmann, 133 S. Ct. 2120, 2132 (2013)(quotation omitted). Nor can it be disputed thatland use regulation is “perhaps the quintessentialstate activity,” FERC v. Mississippi, 456 U.S. 742,768 n.30 (1982), and has been “traditionallyperformed” by state and local governments. Hess v.
29
Port Auth. Trans-Hudson Corp., 513 U.S. 30, 44(1994). The right to regulate and manage Statelands and resources is, therefore, an essentialcomponent of Alaska’s sovereignty.
This is especially true given the commitmentsmade by Congress in the Statehood Act, which is nota typical piece of legislation. Instead, it is aCompact between sovereigns and has attributes of acontractual relationship. See, e.g., Beecher, 95 U.S.at 523. For this reason, the executive branch doesnot have the right to unilaterally amend centralcommitments made by Congress to induce Alaskansto accept statehood, such as the management andcontrol of Alaska’s natural resources, which lie atthe heart of the State’s sovereign interests. Cf.,Hawaii, 556 U.S. at 176.
But by applying federal regulations designed tocontrol the use of federal lands located in parksystems across the United States to lands owned bythe State of Alaska, the Park Service is diminishingAlaska’s land use decision-making authority. Inaddition to restricting the use of hovercrafts on statewaters, the Park Service is now requiring Alaska toseek federal permission to conduct scientificresearch on caribou and salmon on state-ownedlands.25 Brief Amicus Curiae of Alaska at 17.
25 And the Park Service recently published a notice ofproposed rulemaking to abrogate an Alaska-specific exemptionfrom certain nationwide oil and gas rules, making the rulesenforceable to State lands. See General Provisions and Non-Federal Oil and Gas Rights, 80 Fed. Reg. 65,572 (Oct. 26,2015). The rulemaking explained “that because theseregulations are generally applicable to NPS units nationwideand to non-federal interests in those units, they are not
(continued…)
30
The Ninth Circuit has therefore approved aregime in which Alaska may not access its ownlands and resources unless it first obtainspermission from a federal agency. This grant ofplenary power to the Park Service nullifies the strictlimitations on federal jurisdiction over nonfederallands imposed by Congress in ANILCA. It alsoupsets the compromise achieved in ANILCA, whichbalanced the federal government’s desire to protectpublic lands with the State of Alaska’s need foreconomic development and meaningful access andcontrol of its resources. See 16 U.S.C. §§ 3103, 3111-14, 3117-19; see also Marsh, 749 P.2d at 1416-18 &1418 n.5 (observing that Section 103 “specificallyindicat[es] that [State of Alaska and native lands]are not to be restricted by virtue of their locationwithin the boundaries of a conservation systemunit”). And it violates the Statehood Act’s centralcommitment to Alaska, which granted the state theright to make land use decisions for the benefit of itspeople. Trustees for Alaska, 736 P.2d at 335.Sovereignty demands no less. Hawaii, 556 U.S. at176.
In short, the Park Service’s interpretation ofSection 103(c) takes a provision that limits federalauthority and transforms it into an uncheckedsource of power (because of deference) over State ofAlaska lands. While ANILCA assigns many dutiesto various federal agencies, it does not follow that
(continued)‘applicable solely to public lands within [units establishedunder ANILCA],’ and thus are not affected by section 103(c) ofANILCA.” Id. at 65,573 (quoting Sturgeon v. Masica, 768 F.3d1066, 1077-78 (9th Cir. 2014)).
31
the Park Service can override the specificassignment of powers reserved to Alaska concerningland use decisions on Alaska’s lands. Such a drasticchange in the amount of control exercised by thefederal government over all nonfederal lands withinconservation system units in Alaska can only comefrom Congress. Cf., Edmonds v. CompagnieGenerale Transatlantique, 443 U.S. 256, 266-67(1979) (requiring clear evidence of congressionalintent to change the status quo). After all, a “heavyregulatory burden on the States” simply cannot beattributed to Congress absent solid “textualsupport” and a “clear statement” from Congress.PUD No. 1 of Jefferson Cnty. v. Wash. Dept. ofEcology, 511 U.S. 700, 718 (1994). No such textualsupport exists in ANILCA. The Park Servicetherefore cannot rely on Section 103(c), which limitsfederal power. Nor can it transform a general grantof power to diminish Alaska’s sovereignty bycircumventing commitments made by Congress toAlaska in the Statehood Act.
B. The Park Service’s Construction ofSection 103(c) Violates CommitmentsMade by Congress To Native Corporations.
Enforcing regulations designed for the NationalPark System on Native Corporations inholdings willdisrupt, or even forestall, economic development anddaily activities on Native Corporation lands, whichwere intended to sustain and support Alaska’sNative peoples. See 43 U.S.C. § 1601 et seq.; see alsoCity of Saint Paul, Alaska v. Evans, 344 F.3d 1029,1031 (9th Cir. 2003).
Yet, because of the Ninth Circuit’s holding,which makes a mockery of ANILCA’s explicitrestrictions on the exercise of federal jurisdiction
32
over nonfederal lands, federal agencies now havethe power to promulgate regulations that requireNative Corporations to secure approval from thefederal government before landing a plane, buildinga lodge, going for a hike, picking berries, altering acamping site, or even hunting and fishing on Nativeowned lands located within conservation systemunits. Brief Amicus Curiae of Arctic Slope RegionalCorp. at 14-15. Consequently, the Ninth Circuit’sholding is in direct contravention of the unequivocalcommitments made to Native Corporations inANILCA and ANCSA. See Marsh, 749 P.2d at 1418(holding that “Congress intended that the privatestatus of the lands conveyed to [NativeCorporations] is to remain unaffected by theirinclusion within the exterior boundaries of theconservation system unit”).
****
In short, even if Chevron’s step-2 applies, thePark Service’s interpretation of the statute is not“based on a permissible construction of the statute.”Chevron, 467 U.S. at 843.
33
CONCLUSION
For the foregoing reasons, and those inSturgeon’s brief and the supporting amici briefs, theNinth Circuit’s decision should be vacated.
Respectfully submitted,
Jonathan W. KatchenCounsel of Record
Kyle W. ParkerCrowell & Moring LLP1029 W. Third Avenue, Suite 550Anchorage, Alaska 99501(907) [email protected]
Counsel for Amici CuriaeUnited States Senators Sullivanand Murkowski and RepresentativeYoung
November 23, 2015
